Indian Court Says Forced Marital Sex Is Not Rape

By Malavika Vyawahare

May 12, 2014

NEW DELHI — A Delhi court has ruled that sex between a husband and wife, “even if forcible, is not rape.”

The judge’s decision, which was made public Saturday, upheld section 375 of the Indian Penal Code, which does not recognize “sexual intercourse by a man with his own wife, the wife not being under fifteen years of age,” as rape.

Last October, a Delhi woman filed a complaint against a man she accused of drugging her, abducting her and taking her to Ghaziabad, Uttar Pradesh, to register their marriage. Afterward, she told the court, he raped her.

The judge in the case wrote that there was “no clinching or convincing evidence on record to show that the accused had administered any stupefying substance.”

The man accused in the case said that the couple was married in 2011 at the woman’s home in Delhi in the presence of her family, and that they had decided to register with the court only last year on the insistence of the woman. He also said, according to court documents, that the rape complaint was filed by the woman under pressure from her family members, who were not in favor of their marriage.

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The brutal rape of a young woman in New Delhi in December 2012 has led Indians to ask why women are so unsafe in public spaces. Daily travels are often filled with a sense of insecurity.Published OnSept. 13, 2013

The ruling in the case was issued by a special fast-track court established after a Dec. 16, 2012, gang rape that sparked widespread protests and led to growing demands for better laws to prevent violence against women.

Last March, the Indian Parliament passed a series of amendments to enact stricter penalties for crimes against women but overlooked a longstanding demand by women’s rights activists to make marital rape a crime.

Viranda Gover, a lawyer and human rights activist, said the evidence in the Ghaziabad case forces courts “to reckon with the fact that there is forced sex in marriage and it is not hunky dory.” The emergence of similar cases, she said, will strengthen the argument for criminalizing marital rape.

It is not the first time an order by the presiding judge, Virender Bhat, has stoked controversy. In an order issued last October, Mr. Bhat’s comments about girls engaging in premarital sex invited criticism from many quarters.

“Girls are morally and socially bound not to indulge in sexual intercourse before a proper marriage, and if they do so, it would be to their peril and they cannot be heard crying later that it was rape,” he wrote in the judgment.

The comments were dismissed as “absurd,” by a former chief justice of India, V. N. Khare.

A version of this article appears in print on , on Page A7 of the New York edition with the headline: India: Court Rules That Marital Sex, Even When Forced, Is Not Rape. Order Reprints | Today’s Paper | Subscribe